Board of Ethics retains leaked complaint measure

Elizabeth Kim, Staff Writer

Updated 9:55 pm, Tuesday, March 29, 2011

STAMFORD -- After weighing arguments about First Amendment rights and the need for open government, the city's Board of Ethics has decided against overturning a measure passed last month that would give members the power to dismiss ethics complaints that have been leaked to the media before probable cause is determined.

The new rule, which was supported by the board in a 6-1 vote Monday night, is designed to prevent individuals from filing frivolous complaints with the aim of slandering city officials.

"It's about weighing the public interest with the respondent's rights," said Sebastian D'Acunto, a board member.

The board is required to conduct its preliminary investigation in private under the city's ethics code. Only the individual accused in the complaint may waive confidentiality. Once complaints have been determined to have probable cause, they proceed to public hearings.

At the urging of their counsel, board members unanimously adopted the rule at a meeting on Feb. 28.

But saying he had been persuaded by arguments against the rule, board Chairman Daniel Young sought to revoke it.

"Public trust is paramount," Young said. "If we lose the public trust, we might as well not exist at all."

But other members said they felt compelled to give more "teeth" to the confidentiality mandated by the city's ethics code.

"For me it comes down to the fact that we are working within the confines of the code as it exists," said Cheryl Bader, a board member who also serves on the investigation panel.

Bader pointed out members are not permitted to publicly discuss a complaint under investigation even when details have been disclosed in the press.

"It puts us in this hybrid situation," she said. "It can't be confirmed, can't be denied, can't be discussed."

Another investigative panel member, Allan Lang, said press coverage has discouraged some witnesses from testifying.

"I think publicity works against justice in that case," he said.

Bader and others also noted that the rule simply prohibits complainants from indicating that they have filed a complaint, not from airing their grievances to the press. The complainant may also re-file the complaint once it has been dismissed.

The roughly hour-long debate included public comments from editors at The Advocate, which has written about several leaked ethics complaints over the past year.

"Democracy is messy, transparency is messy, but the alternatives are chilling," said David McCumber, editor of The Advocate.

On March 18, The Advocate published an editorial criticizing the confidentiality rule. It asserted that the board should maintain a public docket of filed complaints.

Complaints that are dismissed are not publicly disclosed. During the meeting, editors from The Advocate argued that such a practice left open the possibility that valid complaints that were unfairly handled are never discovered.

The issue in part exposed the increasing demands on a board that has of late found itself in the spotlight regarding the conduct of city officials. Young said that over the last year, there have been approximately 13 ethics complaints, of which two have been found to have probable cause.

The board relies on three of its members to serve on an investigating panel to determine probable cause, which, as Young described, effectively makes the board both "fact finder" and "judge."

Several members acknowledged that the board may not have been built to handle large caseloads.

At one point, Young suggested that the board ask the Board of Representatives to consider the extent to which complaints could be made public.

He said were all complaints open to the public, "I suspect there would not be as much media coverage."

Staff Writer Elizabeth Kim can be reached at elizabeth.kim@scni.com or 203-964-2265.